State ex rel. Utilities Commission v. Town of Pineville

MALLARD, Chief Judge. The Town of Pineville, in Mecklenburg County, is a municipal corporation existing since 1873. See Chapter 41 of the Private Laws of 1973 and Chapter 296 of the Session Laws of 1965. A municipal corporation is specifically excluded from the definition of a public utility under the provisions of G.S. 62-3 (23) d. See also, Dale v. Morganton, 270 N.C. 567, 155 S.E. 2d 136 (1967). In the appellant’s brief, the Town of Pineville and Pineville Telephone Company are referred to as if they were two separate entities; however, it is not revealed in the record what kind of legal entity the Pineville Telephone Company is, if any. Upon the oral argument before this court, the attorney for the Town of Pineville stated that the “Pineville Telephone Company” was not a corporate entity, a partnership, or an individual, but was an “unincorporated association of people.” The principal contention of the Town of Pineville and the Pineville Telephone Company is that they were not permitted to offer all their evidence and that the Commission committed error [671] in finding facts on the evidence offered without affording them an opportunity to complete the offering of their evidence. They also contend that the facts so found were improperly used as a basis for conclusions of law and entry of an order adverse to their interests. The Commission found as a fact from the evidence presented, and concluded as a matter of law from the facts so found, that the Town of Pineville and the Pineville Telephone Company, were not a “public utility” within the meaning of the Public Utilities Act. Under this Act (Chapter 62 of the General Statutes), a public utility is, among other things: “a. ... (A) person, whether organized under the laws of this State or under the laws of any other state or country, now or hereafter owning or operating in this State equipment or facilities for: 6. Conveying or transmitting messages or communications by telephone or telegraph, or any other means of transmission, where such service is offered to the public for compensation.” G.S. 62-3(23). A “person” as defined in the Act is: “. . . (A) corporation, individual, copartnership, company, association, or any combination of individuals doing business as a unit, and includes any trustee, receiver, as-signee, lessee, or personal representative thereof.” G.S. 62-3(21). In this connection, however, we note that the Charter of the Town of Pineville was revised by Chapter 296 of the Session Laws of 1965 and now contains the following provisions authorizing the town: “(2) To furnish all local public services; to purchase, hire, construct, own, maintain and operate or lease local public utilities, to acquire, by condemnation or otherwise, within or without the corporate limits, property necessary for any such purposes, subject to restrictions imposed by general law for the protection of other communities; and [672] to grant local public utility franchises and regulate the exercise thereof. * * * Sec. S3. Saving Clause. If any part of this Charter shall be declared invalid by a court of competent jurisdiction, such judgment shall not invalidate the remainder of the Charter. The provisions of this Charter shall supersede all laws and ordinances not consistent herewith, insofar as the Town of Pineville is affected thereby.” (Emphasis added.) The Commission, after having entered an order permitting the Town of Pineville and the Pineville Telephone Company to intervene and offer some of their witnesses, did not advise them of a date for a further hearing to receive evidence and did not permit them to offer all of their evidence. In entering the order the Commission stated that it made findings of fact “upon consideration of the entire record in this matter, including evidence and exhibits of the parties.” We hold that it was error for the Commission, after permitting the Town of Pineville and the Pineville Telephone Company to intervene and declaring them parties, to fail to hear and consider all of their evidence insofar as it was competent. When the Commission is conducting a hearing, it is acting in a judicial capacity and shall render its decisions upon questions of law and of fact in the same manner as a court of record. G.S. 62-60. Controverted questions of fact, or issues of fact, are decided in a court of record after all of the competent evidence of the parties is offered with respect thereto. In the matter before us, the Commission was informed at the hearing on 19 May 1971 that the Town of Pineville and the Pineville Telephone Company had additional witnesses to offer. The Commission, however, proceeded to find the facts after considering the evidence already offered without ever having heard these additional witnesses. It may be that the Town of Pineville and the Pineville Telephone Company will be unable to offer competent evidence sufficient to support a different result, but under the circumstances of this case, they are entitled to the opportunity to do so. The question of whether the Commission committed error on 16 July 1971 when it denied the motion of the Town of Pine-ville (alone), filed 15 July 1971, requesting that Southern Bell [673] be ordered to cease and desist from the engineering and construction of facilities for the purpose of serving Raintree is not properly presented and is not decided. The Town of Pineville and Pineville Telephone Company have other assignments of error which we do not deem necessary to rule on in view of the disposition of this appeal. The “Commission’s Final Order” entered herein under date of 20 July 1971 is vacated and this cause is remanded for further proceedings herein as provided by law. Error and remanded. Judges Morris and Parker concur.